5.  The applicant was born in 1954 and lives in Chernigiv. Since childhood the applicant has suffered from the second-highest officially recognised degree of disability. In particular, the applicant’s walking ability is impaired – he can only walk with the aid of crutches. Since August 1977 the applicant has worked as a senior researcher at the Chernigiv Institute of Agricultural Microbiology.
6.  The applicant was married to O.M., with whom he had a daughter – A.M. – who was born on 5 May 2002. They lived together as a family in the applicant’s flat in Chernigiv. Y.L. – another daughter of O.M.’s – who was born on 30 April 1994, and M.M., the applicant’s mother, also lived in the same flat.
7.  In October 2005 O.M. moved to live at her mother’s flat in Chernigiv, as O.M. was suffering from cancer and required external assistance, taking with her A.M., who was then three years old.
8.  On 3 April 2006 a lawyer acting on behalf of O.M. lodged a claim with the Desnyanskyy District Court in Chernigiv against the applicant, seeking maintenance payments. In particular, in the claim it was stated that O.M. and the applicant “had not lived as a married couple” since August 2005, that the applicant “had left the family”, that he was not participating in the upbringing of A.M. and was not contributing to it financially.
9.  The applicant submitted his observations on the claim, in which he stated that it had been O.M. who “had left the family” to live at her mother’s flat and that O.M. had taken A.M. with her. The applicant asserted that he was contributing money towards his daughter’s upbringing and that whenever his daughter had been unwell she had stayed at his home in order to protect O.M. against possible infection, most recently from 31 March to 5 April 2006. The applicant further contended that O.M. was in a poor state of health and taking opioids constantly, and that the claim had been instigated by her relatives, in particular by V.K., O.M.’s mother. The applicant asked the court to order A.M. to return to live at his flat as long as O.M. remained in a poor medical condition.
10.  On 16 May 2006 the Desnyanskyy District Court allowed O.M.’s claim, finding that she and A.M. were living separately from the applicant and that he was not contributing money towards the child’s upbringing. The applicant did not appeal against that judgment, stating that he had only learnt of it after some delay.
11.  On 16 June 2006 O.M. died. V.K. took A.M. away from Chernigiv without informing the applicant of the latter’s whereabouts.
12.  The applicant stated that he had lodged a number of complaints and requests with the police, prosecutors, local child-care authorities and non-governmental organisations seeking assistance in his daughter’s return. In particular, he submitted a copy of his complaint of 19 September 2006 addressed to the police and to the Municipal Centre of Social Services for Family, Children and Youth (Міський центр соціальних служб для сім’ї, дітей та молоді, “the Municipal Family Welfare Centre”) in Chernigiv.
13.  In a letter dated 16 October 2006, the Municipal Family Welfare Centre informed the applicant that his request of 19 September 2006 for his daughter’s return had been examined. The applicant was also informed by V.K.’s neighbours that she had left Chernigiv for Andriyivka, a village in the Chernigiv oblast (about 25 km away from Chernigiv), and had taken A.M. with her. The local authorities in Andriyivka were thus asked to assist the applicant in his request for the return of his daughter. The Chernigiv Municipal Family Welfare Centre also informed the applicant that he should raise the issue of establishing his daughter’s place of residence before the courts.
14.  In October 2006 the police informed the applicant that there were no grounds for opening a criminal case on the basis of his complaint and that he should pursue it directly before the courts in the framework of a private action.
15.  On 11 December 2006 V.K. lodged a request with the Desnyanskyy District Council in Chernigiv asking that she be appointed as A.M.’s tutor, stating that A.M. had been living with her since O.M.’s death, that the applicant suffered from the second-highest officially recognised degree of disability, and that she was not receiving any help from him.
16.  The applicant was not informed about V.K.’s request.
17.  On 22 December 2006, in response to V.K.’s request, the Desnyanskyy District Council adopted a decision appointing her as tutor of A.M. on the grounds that “the child’s mother had died [and] her father, who suffered from the second [highest officially recognised] degree of disability, could not take care of [the child’s] upbringing because of his state of health” (“the tutelage decision”). The decision noted that A.M. was living with V.K. at the latter’s place of residence.
18.  By a letter dated 24 February 2007, the Desnyanskyy District Council informed the applicant about the tutelage decision.
19.  On 31 December 2006 A.M. broke her hip after falling from a cupboard in V.K.’s flat. According to the applicant, this had happened because V.K. had left his daughter without supervision for a long period of time.
20.  In February 2007 the applicant lodged a claim with the Desnyanskyy District Court seeking his daughter’s return. On 8 May 2007 the claim was left undecided as the applicant had failed to appear before the court. According to the applicant, it was his lawyer who had failed to attend the court hearing.
21.  In September 2007 the applicant lodged a new claim with the Desnyanskyy District Court seeking his daughter’s immediate return pursuant to Article 162 of the Family Code. The applicant argued that after his wife’s death, V.K. had retained his daughter unlawfully and without his consent. He also stated that V.K. had hindered his contact with A.M. The applicant invoked Articles 151, 153, 154 and 163 of the Family Code and Article 23 of the Civil Code.
22.   V.K. disputed the applicant’s claim, arguing that she was A.M.’s tutor and that her granddaughter was therefore living lawfully at her home. V.K. stated that in October 2005 O.M. and A.M. had come to live in her flat as O.M. had required assistance for health reasons. After the latter’s death, A.M. had remained with V.K.
23.  V.K. also lodged a counterclaim seeking compensation for non-pecuniary damage in respect of allegedly false information the applicant had submitted to the courts. In her counterclaim, V.K. stated that after the death of O.M. the applicant had, “periodically”, made phone calls asking her to return A.M. to him. V.K. alleged that he had verbally abused her, but provided no further details.
24.  The representatives of the tutelage service (орган опіки та піклування) within the Desnyanskyy District Council submitted that the tutelage decision had been taken because the applicant – due to his disability – had not been able to take care of the child’s upbringing, that the living conditions at the child’s place of residence had been inspected and that the interests of the child had been taken into account.
25.  During a court hearing on 19 December 2007 the applicant stated that he wished his claim to be amended to include a request for cancellation of the tutelage decision. The judge invited the applicant to submit an amended claim in writing.
26.  At a hearing on 8 February 2008 the applicant submitted to the court his amended claim challenging the lawfulness of the tutelage decision and asking the court to order the Desnyanskyy District Council to adopt immediate measures to bring about his daughter’s return. The applicant argued that the contested decision had been taken without his consent and that he had not been informed that the matter had been considered. Referring to the incident on 31 December 2006 as a result of which A.M. had been injured (see paragraph 19 above), the applicant argued that his daughter’s life and health were at risk while she was staying with V.K. The applicant relied inter alia on Articles 152, 153, 157, 160 and 163 of the Family Code, Articles 58, 79, 1167 and 1168 of the Civil Code, and Articles 3 and 9 of the Convention on the Rights of Children of 1989.
27.  The judge sitting in the case refused to include the amended claim in the case file on the grounds that the “amended” claim was in fact a new claim. The judge noted that its inclusion in the case would require the participation of new parties and would complicate consideration of the original claim.
28.  At the hearing on 8 February 2008 the court delivered a judgment rejecting the applicant’s original claim. The court found that the applicant had been informed of the tutelage decision before he had lodged his claim with the court and as he had not challenged that decision, A.M. was staying with V.K. lawfully.
29.  By the same judgment, the court also rejected V.K.’s counterclaim as unsubstantiated.
30.  The applicant appealed, stating that the first-instance court’s refusal to consider his amended claim was groundless and that the judgment was not in accordance with the relevant law. The applicant also stated that the court had not allowed him to question the witnesses who had appeared before the court, but provided no details in that regard.
31.  On 10 April 2008 the Chernigiv Oblast Court of Appeal rejected the applicant’s appeal. It noted that A.M. had been living “permanently” at V.K.’s place of residence since October 2005 and that, by the judgment of 16 May 2006, the Desnyanskyy District Court had ordered the applicant to pay maintenance to O.M. in respect of A.M.’s upbringing (see paragraph 10 above). The Court of Appeal held that there were no grounds for returning A.M. to the applicant pursuant to paragraph 2 of Article 163 of the Family Code, given that the tutelage decision was in force, that A.M. was staying lawfully with V.K., and that the latter was opposed to the child’s returning to living with the applicant because she believed that it would be contrary to the child’s interests.
32.  Relying on Article 3 of the Convention on the Rights of the Child of 1989, the Court of Appeal found that the applicant had not produced evidence showing that it would be in A.M.’s best interests to live with the applicant or that it was contrary to her interests to live with her tutor.
33.  The Court of Appeal refused to deal with the arguments brought by the applicant on the basis of his amended claim, since it had not been examined by the court of first instance. In that context the Court of Appeal held that the first-instance court’s decision not to include the amended claim was in compliance with Article 126 of the Code of Civil Procedure.
34.  The applicant lodged a cassation appeal. He argued that, in dealing with his case, the courts had not acted in accordance with the proper procedure. In particular, the applicant alleged that the courts had unlawfully refused to consider his amended claim, that they had refused to summon witnesses on his behalf without stating the reasons why, that they had not considered the applicant’s request for the inclusion of important documentary evidence, and that they had systematically restricted his procedural rights, in particular the right to study the case file and to put questions to those taking part in the proceedings.
35.  The applicant also argued that the courts’ decisions had not been in accordance with the law.
36.  In his cassation appeal the applicant further alleged that V.K. had systematically hindered his access to the child.
37.  By a decision of 9 September 2008, the Supreme Court rejected the cassation appeal as unsubstantiated, finding that the arguments contained in it did not constitute a basis for concluding that the judgments of the lower courts were wrong or unlawful. No further reasons were given by the Supreme Court.
38.  According to the applicant, some of the court hearings had been held in the absence of his representative, who was unable to attend for health reasons. He provided no further details in that regard.
39.  On 1 April 2008 the applicant lodged a claim with the Desnyanskyy District Court seeking cancellation of the tutelage decision. The claim was based on the same arguments as those supporting the original and amended claims lodged by the applicant in the course of the first set of proceedings (see paragraphs 21 and 26 above).
40.  On 18 August 2008 the Desnyanskyy District Court, relying on paragraph 1 of Article 3 of the Convention on the Rights of the Child of 1989, Articles 243-244 of the Family Code and Section 2.2 of the Regulations on Tutelage and Guardianship of 1999, found against the applicant.
41.  The court noted that (i) the applicant had not produced any evidence showing that it would be in A.M.’s best interests to live with the applicant or that it would be contrary to her interests to live with her tutor; (ii) the tutelage service within the Desnyanskyy District Council had not had any concerns about the fulfilment by V.K. of her duties as a tutor; (iii) A.M. had lived at her grandmother’s home for three years before the decision in the case had been taken; (iv) during that period the applicant had not enquired about his child’s situation, had not used any means to communicate with her, and had not visited the child either at her place of residence or at the nursery which she had been attending; and (v) the applicant had participated in his daughter’s upbringing only by making maintenance payments. The court held that the contested decision had been adopted in accordance with the law and that A.M.’s interests had been duly taken into account.
42.  The applicant appealed, stating that the first-instance court had not taken into consideration his submissions that (i) V.K. had unlawfully retained his daughter before the tutelage decision had been adopted; (ii) V.K. had been hindering his communication with the child; (iii) there were witnesses alleging that V.K. had been abusing alcohol and “misbehaving”; (iv) V.K. had been responsible for the incident on 31 December 2006 (see paragraph 19 above); and (v) in addition to paying maintenance, the applicant had been sending money and parcels to A.M. by post, as he had not had the opportunity to deliver them in person. Moreover, V.K. had allegedly refused to let him into her house when he had come to see his daughter and had not answered his phone calls.
43.  The applicant also alleged that the first-instance court had refused to question witnesses on his behalf and that he had not been allowed to put questions to the witnesses who had been questioned by the court. The applicant did not provide further details in respect of those allegations.
44.  On 4 November 2008 the Chernigiv Oblast Court of Appeal rejected the applicant’s appeal, finding that (i) A.M. had been living with V.K. at her home since October 2005; (ii) A.M. had been under the medical supervision of the clinic in that location since birth; (iii) after O.M.’s death the applicant had not taken charge of the child’s upbringing; (iv) the applicant had not challenged the lawfulness of his daughter’s living with the grandmother prior to the adoption of the tutelage decision; (v) the applicant suffered from the second-highest degree of disability; and (vi) due to his “impaired moving capacity” the applicant had been sleeping in his office overnight on workdays (from Monday to Friday), returning home only for weekends. Relying on those grounds, the Court of Appeal held that the tutelage decision safeguarded the interests of the child, was in accordance with the law, and did not violate the applicant’s rights to educate and support his child.
45.  The Court of Appeal also held that the applicant’s allegations that the retention of his daughter by V.K. had been unlawful, that his communication with A.M. had been hindered and that V.K. had failed to fulfil her duties as a tutor were not supported by evidence and had been disproved by the information submitted by the Desnyanskyy District Council.
46.  The applicant lodged a cassation appeal. He argued that, in violation of the proper procedure, the first-instance and appeal courts (i) had refused the applicant’s requests to have certain audio recordings examined in court and to check the reliability of the documents provided by the Desnyanskyy District Council; (ii) had not included the documentary evidence on which the applicant had relied; (iii) had not allowed the applicant to put questions to witnesses – in particular Y.L. – or to express his views regarding the way the hearings had been held; and (iv) had not observed the relevant regulations when accepting medical information (which he did not further specify). The applicant also stated that the courts had not taken into account his arguments that he had been unable to take care of A.M. because V.K. had hindered his communication with the child. In particular, she had allegedly “hidden” A.M. from the applicant, had not opened the door of her house when the applicant had tried to visit, and had otherwise blocked any opportunity for the applicant to see A.M. The applicant also argued that the courts had not applied the law pertinent to the case.
47.  On 27 January 2009 the Supreme Court rejected the cassation appeal, finding that it contained no arguments requiring examination of the case material or demonstrating that the lower courts had violated procedural or substantive law.
48.  According to the applicant, V.K. had continued to hinder his communication with A.M. and he had not been able to participate in his daughter’s upbringing. In particular, on occasions when the applicant had come to visit his daughter, V.K. had not opened the door of her house. She had also refused to allow the applicant to take A.M. for medical examination.
49.  The applicant alleged that, despite his repeated requests for assistance in obtaining access to his daughter to enforce his parental rights, the authorities had been reluctant to help him. The applicant submitted copies of letters from the Desnyanskyy District Council and the Andriyivka Council stating inter alia that the living conditions of A.M. were satisfactory and that she was doing well at school. However, the applicant had not contacted the school administration to learn about the child’s everyday life and progress. In a letter dated 6 July 2009, the Desnyanskyy District Council stated that it would no longer deal with further similar requests from the applicant.
50.  The applicant also argued that he could provide adequate living conditions for his daughter, being a physiologist with a teaching qualification; he had sufficient income and owned a flat. The applicant also stated that he had been a tutor to Y. L.
51.  According to the applicant, his daughter’s living conditions at V.K.’s place of residence were worse than the conditions at his home, V.K.’s house in Andriyivka having no sanitary facilities or no natural gas supply. The applicant explained that the school which his daughter attended was about to be closed on the grounds of having too few pupils. The school was two kilometres away from V.K.’s house, whereas the applicant’s house was only about two hundred metres from a school.